Immigration has sadly risen to the top of the political agenda with the increase in refugees/migrants trying to cross the Channel. Farage as usual is in the thick of it, even down to filming on beaches as migrant boats come ashore, proving I think that Cameron was right when he said the UKIP were fruitcakes, loonies and closet racists. There is an awful lot of speculation about the legal position and I noticed this nice piece by professor Steve Peers from the University of Essex, on his blog where he sets out the law as he understands it.
There are three main sources of law and as he says they are fragmented and incoherent:
The UN Refugee Convention
This is the UN Convention on the status of refugees. But it simply defines what a refugee is and lists the rights of refugees. But that doesn't deal with issues like asylum procedure, and he says it has an "uneasy and uncertain relationship with immigration law."
The ECHR
Secondly, the European Convention on Human Rights (ECHR) says nothing about asylum explicitly, but what law there is comes from the case law of the ECHR court itself. This essentially bans torture or other inhuman or degrading treatment and so removal to another country to face a sufficiently serious risk of that sort of treatment infringes Article 3 in the country removing the person concerned.
EU asylum law
Thirdly, and again as usual the EU has tried to put in place laws to govern what happens to these people. According to Peers, EU law has aimed to create a Common European Asylum System (CEAS) in several phases. A first phase of EU asylum law was adopted from 2003 to 2005, and a second phase was adopted between 2010 and 2013. A (de facto) third phase of laws, responding to the perceived European refugee crisis of 2015, was proposed in 2016, but negotiations on those laws are still continuing (the Commission plans to attempt a relaunch of talks in autumn 2020).
Part of the CEAS is the so called Dublin rules concerning which states are responsible for asylum applications, These are currently the Dublin III Regulations).
The professor goes on to destroy a few myths, the main ones are:
The notion that ‘illegal’ migrants – ie those people who entered the country or arrived at the borders without authorisation – cannot be ‘genuine’ refugees is utter nonsense: morally, factually and legally.
And this one which the BBC misquoted on the news only last night:
"While it is often strongly asserted that 'international law requires refugees to apply for asylum in the first safe country they enter', in fact the position is rather vaguer than that. The Refugee Convention doesn’t contain any express rule to that effect in the rules on the definition of refugee, or on the cessation (loss) or exclusion from being a refugee, as set out in Articles 1.A to 1.F of that Convention."
And:
"It’s often claimed that the [EU's] Dublin rules say that an asylum-seeker has to claim asylum in the first EU country they reach. Apart from the fact that the rules don’t regulate asylum seekers directly – as discussed above – the ‘first country they enter’ point is oversimplified. That’s not a rule as such, although in practice the Dublin rules will often – but not always – amount to assigning responsibility to the first country of entry.
He says the Dublin rules don’t "create obligations for asylum-seekers to apply in certain countries; they create obligations for States to admit those asylum-seekers if they are responsible for the application. Asylum-seekers can still apply in a State which isn’t responsible for them under the EU rules; but they might face the consequence that their application is deemed inadmissible (not unfounded on the merits) and they are transferred to the country responsible for their application."
Peers puts it like this: the Dublin rules set out out where asylum seekers should apply for asylum; but that’s not the same as a legal requirement to apply in a certain country.
So what's the impact of Brexit? Well the UN convention and the ECHR rules will still apply after December but the Dublin rules will not. So, when Johnson told TV viewers that it will be easier to return illegal migrants after Brexit he was being premature, if not wholly wrong as he so often is.
It's still possible there will be an agreement of some kind to replace the rules but that can't be guaranteed and France is no doubt quite happy to see the migrants leave French territory, regardless of what politicians say in public.
Peers says the EU has signed Dublin ‘association agreements’ with some non-EU countries – Norway, Iceland, Switzerland and Liechtenstein – the rationale for this is that those countries are also associated with the EU’s Schengen system. In practice, the UK has tabled proposals for treaties on readmission of people and unaccompanied minors, which would replace aspects of the Dublin system, but the EU proposals do not so far deal with this issue. And Johnson and Farage should note this:
Peers says the EU has signed Dublin ‘association agreements’ with some non-EU countries – Norway, Iceland, Switzerland and Liechtenstein – the rationale for this is that those countries are also associated with the EU’s Schengen system. In practice, the UK has tabled proposals for treaties on readmission of people and unaccompanied minors, which would replace aspects of the Dublin system, but the EU proposals do not so far deal with this issue. And Johnson and Farage should note this:
"The notion that those intercepted in the Channel or detected after crossing the Channel could be forcibly returned to France without that country’s consent is a non-starter (as is patrolling French territorial waters without consent). The referendum result is not a mandate to ‘take back control’ of a different country – least of all a country which English forces were booted out of in 1453. Comparisons to Australian policy miss the point: that country intercepts asylum seekers in international waters, and obtains the consent of the country or territory which it sends asylum seekers to."
As some commentators have already noted there is no "international waters" between the UK and France. On leaving French waters you immediately enter British waters so the idea we can intercept immigrants on the high seas is out of the question.
Peers also notes that British immigration officials will still be allowed to operate on French soil by virtue of the Le Touquet treaty after Brexit but while these border controls provide some links to asylum responsibility they are not a full asylum responsibility system as such.
In particular these treaties have no direct impact on people who evade controls by crossing the Channel on boats without authorisation, he says.
So, the conclusion he comes to is that "for one category of non-EU citizens – asylum-seekers whose application would be the responsibility of another country under the Dublin rules – the effect of Brexit may be ultimately to reduce UK control of migration, not increase it."
Not for the first time we see the result of not properly thinking Brexit through. IDS claimed a few days ago that the supposed £166 billion in European Investment Bank guarantees were hidden in the small print. Now we see the same thing on immigration.
You cannot tear down what has taken 45 years to build overnight without a lot of detailed analysis and thinking and a comprehensive plan. But with Brexit we are making it all up as we go along and I think the sheer ignorance and incompetence is what other countries find baffling.
It is as if the problems of our education system, building for fifty years, have finally been outed to reveal a toxic combination of a gullible electorate and useless politicians.
I note Dr North at the EU Referendum blog has posted on the same topic this morning, although I prefer the blog of professor Peers who is a legal expert. North relies for his closing argument about the safe country "concept" on a web page from 1991 which I think says it all. In a court of law, national or international they use laws not concepts and having spent his life arguing for Brexit, North is trying to distance himself from the disaster - as he has been doing since June 2016.
